subject only to the restraints of special constitutional provisions, if any there be. And it is an ordinary exercise of the legislative dominion over such corporations to provide for their enlargement or division; and, incidental to this, to apportion their property and to direct the manner in which their debts or liabilities shall be met, and by whom. The opinion has been expressed that the partition of the property must be made at the time of the division of, or change in, the corporation, since otherwise the old corporation becomes, under the rule just before stated, the sole owner of the property, and hence cannot be deprived of it by a subsequent act of the legislature.1 But, in the absence of special constitutional limitations upon the legislature, this view cannot, perhaps, be maintained, as it is inconsistent with the necessary supremacy of the legislature over all its corporate and unincorporate bodies, divisions, and parts, and with several well-considered adjudications.2

§ 190 (130). Corporate Seal; Power to adopt and alter. - The charters of municipal corporations usually contain a clause authorizing them to have and use a common seal, and to alter the same at pleasure. Without an express grant it is, however, incident to every corporation to adopt and use a corporate seal. The essential importance which the common law anciently attached to seals, and the modern relaxation of the rule, are well known. Respecting seals, the same general principles apply to private and to municipal corporations. Thus, a corporation of the latter class would doubtless be bound equally with a private corporation by any seal which has been authoritatively affixed to an instrument requiring it, though it be not the seal regularly adopted. On the other hand, it would not be

Township of Churchill v. Township of vide for an equitable adjustment of the inCummings, 51 Mich. 446.

1 Hampshire v. Franklin, 16 Mass. 76; Windham v. Portland, 4 Mass. 390; Bow doinham v. Richmond, 6 Greenl. (Me.) 112, holding that subsequent legislation could not change the apportionment of the debts between an old town and one created from it, since such an apportionment was in the nature of a contract. But see, ante, chap. iv. secs. 64, 75.

debtedness among them all, by commissioners to be appointed by a designated court, and from whose determination no appeal was allowed. As to extent of legislative control over public and municipal corporations, and their rights, liabilities, property, and contracts, see ante, chap. iv. and cases there cited; Cooley, Const. Lim. 193, 231, 232; ante, secs. 172, 173; post, chapter on Taxation.

2 Layton v. New Orleans, 12 La. An. 3 Bank, &c. v. Railroad Co., 30 Vt. 159 515 (1857), cited, ante, sec. 63; Laramie (1858), per Redfield, C. J.; Tenney r. County v. Albany County, 92 U. S. 307 Lumber Co., 43 N. H. 343; Mill Dam (1875); Dunmore's Appeal, 52 Pa. St. Foundry v. Hovey, 21 Pick. 417; Porter 374. In this last case one borough was v. Railroad Co., 37 Me. 349; Angell & divided into four, and the legislature was Ames, Corp. sec. 217; Phillips v. Coffee, held to have the power afterwards to pro- 17 Ill. 154; Stebbins v. Merritt, 10 Cush.

bound by the affixing of either the regular or temporary seal by a person not legally and duly authorized. So, under the modern doctrine, a corporation can do an act in pais by an attorney in fact, and such attorney need not necessarily be appointed under seal.2

§ 191 (131). Seal, how proved. The seal of a private corporation attached to an instrument does not prove its own authenticity; but it should be shown by evidence aliunde to be really the seal of the corporation. The same doctrine is, probably, applicable to the seal of a municipal corporation, except where changed by charter or statute, although it seems that it is usual in England to allow deeds and other instruments relating to real estate to go to the jury when authenticated by the corporate seals of London, Edinburgh, or Dublin, these being corporations of great antiquity, or recognized by the legislature. The corporate seal attached to an instrument, attested by the signatures of the proper officers, is prima facie but not conclusive evidence that it was lawfully placed there, and that the instrument is the act of the corporation.

27; City Council v. Moorehead, 2 Rich. Law, 430; Grant on Corp. 59, and cases; and note author's opinion and his doubt as to the existence of any common law right to change the common seal. An impression of a corporate seal stamped upon and into the substance of the paper containing the instrument is sufficient, without wafer or wax. Hendee v. Pinkerton, 14 Allen, 381.

66

Koehler v. Iron Co., 2 Black, 715 (1862); Bank of Ireland v. Evans, 32 Eng. Law & Eq. 23. But where a corporation is created by an act for particular purposes with special powers, then another question arises; their deed, though under their corporate seal, and that regularly affixed, does not bind them if it appear by the express provisions of the statute creating the corporation, or by necessary or reasonable inference from its enactments, that the deed was ultra vires; that is, that the legislature meant that such a deed should not be made." Per Parke, B., in South Yorkshire Railway Co. v. Great Northern Railway Co., 9 Ex. 55, 84; adopted by Martin, B., in Payne v. Brecon, 3 H. & N. 579. See also Holdsworth v. Dartmouth, 11 A. & E. 490; Regina v. Lichfield, 4 Q. B. 893; Pallister v. Graves

end, 9 C. B. 774; Nowell et al. v. Worcester, 9 Ex. 457; Kendall v. King, 17 C. B. 483.

2 Curry v. Bank, 8 Porter (Ala.), 361 (1839); Lathrop v. Bank, 8 Dana, 114; Abby v. Billups, 35 Miss. 618.

8 Den v. Vreelandt, 2 Halst. (N. J.) 352 (1800); Gilbert, Ev. 19; Jackson v. Pratt, 10 Johns. 381; Moises v. Thornton, 8 Term R. 303; City Council v. Moorehead, 2 Rich. (S. C.) Law, 430; Foster v. Shaw, 7 Serg. & Rawle (Pa.), 163; b. 318; Mann v. Pentz, 2 Sandf. Ch. 257.

4 Per Kinsey, C. J., Den v. Vreelandt, 2 Halst. (N. J.) 352.

5 Levering v. Mayor, 7 Humph. (Tenn.) 553 (1847); Memphis v. Adams, 9 Heisk. (Tenn.) 518 (1872); Abbott, Corp. Digest, tit. Seal, p. 725, sec. 56, and the many cases there cited; Benedict v. Denton Walk. Ch. 336; Railway Co. v. Railway Co., 9 Exchq. 55, 84; Musser v. Johnson, 42 Mo. 74. In Iowa, the county seal held to be essential to the validity of a county warrant. Prescott v. Gouser, 34 Iowa, 178; Springer v. Clay Co., 35 Iowa, 243; Smeltzer v. White, 92 U. S. 390 (1875).

The modern rule is

§ 192 (132). Seal, where not necessary. that corporations may be bound by contracts not under seal, and the circumstances under which they will be bound have been stated by Story, J., in terms which have been approved by the courts of nearly every State in the Union. "Wherever a corporation is acting within the scope of the legitimate purposes of its institution, all parol contracts made by its authorized agents are express promises of the corporation; and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises, for the enforcement of which an action lies." 1

held void for want of the corporate seal. Kinzie v. Chicago, 2 Scam. (Ill.) 188. But otherwise of an authorized agreement by an agent of a corporation to sell lands (Legrand v. The College, 5 Munf. (Va.) 324), or authorized assignment of a lease. Sanford v. Tremlett, 42 Mo. 384. Corporate seal to conveyance by county commissioners. Bestor v. Powell, 2 Gilm. (7 Ill.) 126. Further, see Index - "Seal." Mr. Broom gives an excellent view of the exceptions to the rule that corporations must contract by deed, as recognized and established by the modern English decisions. Broom, Com. on Com. Law, 562Seals in connection with municipal See chapter xiv. on Contracts,

1 Bank of Columbia v. Patterson, 7 Cranch (U. S.), 299, 306 (1813); Bank v. Wister, 2 Pet. 318; Davenport v. Insurance Co., 17 Iowa, 276; Ring v. Johnson County, 6 Iowa, 265; Over v. Green field, 107 Ind. 231. See further, Chaps. on Contracts and Property, post, secs. 459, 936. Corporate seal affixed to the note of the corporation makes it a specialty, having in this respect the same effect as the seal of a natural person. Clarke v. Farmers', &c. Co., 15 Wend. 256; Ib. 265; Benoist v. Carondolet, 8 Mo. 240; Sturtevant v. Alton, 3 McLean, 393. But corporate seals attached to municipal bonds payable to order or bearer 569. do not destroy or affect their negotiability. bonds. See post, chap. xiv. on Contracts. Lease post.

CHAPTER IX.

MUNICIPAL ELECTIONS AND OFFICERS.

§ 193 (133). Subject outlined. In considering the Creation and Constitution of Municipal Corporations, we have now reached, in its order, the subject of MUNICIPAL ELECTIONS AND OFFICERS. will be treated under the following heads : —

1. Municipal Popular Elections - secs. 195-199.

It

2. Special Tribunal to determine Election Contests for Muni cipal Offices-secs. 200-205.

3. Power to create and appoint Municipal Officers secs. 206213.

4. Oath and Official Bond of Municipal Officers -- secs. 214216.

221.

5. Duration of Official Term of Municipal Officers

6. Vacancies in Municipal Offices sec. 222.

7. Refusal to serve in Municipal Offices-sec. 223.

8. Resignation of Municipal Officers-secs. 224-228.

secs. 217

9. Compensation of Municipal Officers secs. 229-234.

10. Liability of the Corporation to the Officer. Right of Officer to salary sec. 235.

-

11. Liability of the Officer to the Corporation and to Others — sec. 236.

12. Amotion and Disfranchisement

secs. 238-256.

§ 194. Municipal Popular Elections. Elections must be held at the time and place provided by the charter or by statute. Where the law fixes no time, but leaves the time and place to be fixed by some authority named therein, it is essential to the validity of the election that it be called and the time and place thereof fixed by the agency designated by law, and none other; as where the mayor and city council are the designated authority, neither the mayor alone nor the council alone has power to call such an election; if either neglect its duty, mandamus is the remedy.1

1 Stephens v. People, 89 Ill. 337; Glencoe v. People, 78 Ill. 382; Dickey v. Hurlbut, 5 Cal. 343; People v. Murray,

15 Cal. 221; People v. Harvey, 58 Cal. 337; Juker v. Commonwealth, 20 Pa. St. 484; Chadwick v. Melvin, 68 Pa. St.

§ 195 (134). Ballot; Qualification of Voters; Residence. tions by the people, with exceptions in a few States, are by folded or secret ballot, and not open or viva voce. The qualifications of electors or voters are fixed by the Constitution and laws, and cannot be changed by any ordinance or act of the corporation.2 Residence for a certain period within the municipality is almost invariably required in express terms, as one of the qualifications of the right to vote at elections therein and as one of the conditions of eligibility to hold a municipal office. Non-residents of the corporation have, however, been held competent to be elected to office when residence was not expressly required, but the decisions cannot, perhaps, be